NY Appeals Court Invokes Telecom Act, Clears East Fishkill Tower

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The U.S. Court of Appeals for the Second Circuit in New York on Tuesday handed the tower industry a significant victory by embracing a lower court’s ruling earlier this year on an effective prohibition claim made by a tower company after a town denied its application to build a 150-foot cell tower for Verizon Wireless.

A three-judge Appeals Court panel denied an appeal by the town of East Fishkill, NY, after a lower court, the U..S District Court for the Southern District of New York, ruled on January 30 the town’s denial to Homeland was effectively prohibiting it from providing wireless services in violation of the Telecommunications Act of 1996. The landmark decision demands the town immediately issue Homeland Towers LLC and its tenant, Verizon Wireless, a permit to build the tower but it also sets a precedent for all similar cases going forward that courts will generally interpret the Spectrum Act in the same manner.

“We are thrilled that the Second Circuit adopted Homeland and Verizon’s position regarding the significance of the service to be provided, looking at the gap’s physical size, the number of wireless users affected by the gap, the location of the gap, drop call or failure rates and other real metrics associated with providing reliable wireless services to the public,” Christopher Fisher, one of four attorneys with the New York-based firm of Cuddy + Feder, LLP, who represented the plaintiffs, said. “This is a critical advancement of the law, particularly when it comes to regulatory barriers to services being provided in all wireless infrastructure scenarios including towers, DAS, small cells, whether it be coverage or capacity situations.” 

Fisher added, “This case is also significant because the District Court decision was the first time that a Federal Court applied the Spectrum Act in the context of a new tower application. Congress passed the Spectrum Act to overcome bureaucratic delays in collocation of wireless infrastructure deployment, and the Court properly ruled it could not be used as a basis to deny a new tower application.”

Despite the intention of the act, the tower has been at least four years in the making, Fisher’s colleague Anthony B. Gioffre, III pointed out. He and Fisher told Inside Towers that Homeland Towers began plans to build the tower—intended to provide reliable wireless services along the Taconic State Parkway, as well as to commercial and residential areas of the community—as far back as 2011. Two years later, in 2013, Homeland applied for a permit from the town but was denied. The law firm took

Homeland’s case to Federal Court and the US District Court for the Southern District of New York and last January the District Court struck down the Town’s denial. It ordered it to issue Homeland a construction permit within 30 days. But East Fishkill appealed the decision, won a stay, and on November 3 its lawyers made presented its case to Appeals Court Judges Peter W. Hall, Raymond J. Lohier Jr., circuit judges; and District Court Judge Christina Reiss. They rendered their findings on Tuesday, November 10.

“It is an important victory for our clients, Homeland Towers and Verizon, and going forward, it is an important victory for tower companies who want deliver reliable service to communities,” Fisher told Inside Towers yesterday.

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